37. Furthermore, it is essential that the prisoner should be able to have an
independent judicial authority review the merits of, and reasons for, a prolonged
measure of solitary confinement.349
38. Measures such as solitary confinement should be resorted to only exceptionally
and after every precaution has been taken. In order to avoid any risk of
arbitrariness, substantive reasons must be given when a protracted period of
solitary confinement is extended.
Secret or Incommunicado detention
39. Solitary confinement and incommunicado or secret detention have been found
to violate the prohibition on torture350 and the Human Rights Committee has
recommended that ‘provisions should be made against’ it.351 Torture is most
frequently practised when a person is held without access to a lawyer, and/or
his or her family and relatives or groups from civil society (incommunicado
detention).352 As the former Commission on Human Rights noted, ‘prolonged
incommunicado detention may facilitate the perpetration of torture and can in
itself constitute a form of cruel, inhuman or degrading treatment’.353 There is a
direct link between secret or incommunicado detention and enforced
disappearances.
40. Prolonged incommunicado detention may facilitate the perpetration of torture
and can in itself constitute a form of cruel, inhuman or degrading treatment. 354
Furthermore, even in cases where no independent risk of torture exists for a
person held in incommunicado detention, where such detention is prolonged,
that in itself may amount to inhuman and degrading treatment. If prolonged
incommunicado detention takes place in a secret or unknown place, this may
amount to torture.
41. As part of its review of Spain’s compliance with CAT, the Committee Against
Torture has pointed out that it ‘continues to be deeply concerned by the fact
that incommunicado detention up to a maximum of five days has been
maintained for specific categories of particularly serious offences. During this
period, the detainee has no access to a lawyer or to a doctor of his choice nor
is he able to notify his family. Although the State party explains that
349
UN Body of Principles for the Protection of All Persons under Any Form of Detention and
Imprisonment, Principles 15 and 16.
350 See e.g. Human Rights Committee, General Comment No.20, 44th Session (1992), para 6;
Communication 1295/2004, El Alwani v. Libyan Arab Jamahiriya, 11 July 2007, para 6.5;
Communication 1297/2004, Medjnoune v. Algeria, 14 July 2006, para 8.4; Inter-American Court of
Human Rights, Bámaca-Velásquez v. Guatemala. 25 November 2000. Series C No. 70. para 150;
African Commission, Communication. 222/98 and 229/99 Law Office of Ghazi Suleiman v. Sudan,
(2003).
351 Human Rights Committee, General Comment No.20, 44th Session (1992), para 11.
352 See UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment which requires those arrested or detained to have the right to inform their family or friends,
Principle 16.
353 Res.1999/32, para 5.
354 Resolution 1999/32 (para 5).
72
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